Revolution and the Courts

Program Information
Transcript
Virginia Standards

Program Information

Program: Judicial Independence in the New World
Segment Number: 9 (Watch entire program)
Duration: 00:07:40
Year Produced: 2009
Description:

Even as the Revolution gathered in strength, the basic court system changed very little. Although the Declaration of Independence sought to liberate the states from Britain, Jefferson wanted to continue the basic rule of English law.

The court system is an ever-changing and evolving entity, and there are key moments of history when Virginia's people and its judicial system made everlasting impressions on the country. JUDICIAL INDEPENDENCE IN THE NEW WORLD tells the story of the development of the court system in the early years of our nation's history. Historians take us back to the Court Days and Pre-Revolution and Post-Revolution periods to explain the rule of law and the basics of the court system we know today.

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Transcript

Shepard:
There is an increasing sense of, if not independence, of separation from England, there is a gradual sense that Virginia is my country. And interestingly people would say “Virginia is my country,” not “America is my country.” We have rights as English persons, but in reality, these rights are things that we have had an opportunity to exercise and now we don’t want them changed or taken away. But there’s this idea that we have this great heritage, and the people in England who running the show there are not taking our rights seriously, and we must do something to protect them.

Holton:
We think of an empire, you know, you think of Darth Vader’s empire, whatever the Emperor says, goes. But that was not the case, this was a pretty loose empire. And so there were a lot of things that the king wanted to happen and the British parliament wanted to happen, that didn’t actually happen. Because they proposed but the people in Virginia disposed of those directives from Britain. And people refer to this a period of salutary neglect. Most of the 18th century the British government had a lot of Draconian restrictions but didn’t enforce them.

Howard:
Starting in the 1760s with the Stamp Act and other revenue measures, when Britain began to take steps that the American colonists thought were not consistent with their rights, what they did was that they pointed to the language of the Virginia Charter of 1606, and they said “Now wait a minute, when our ancestors came to Virginia, we were guaranteed these rights, and we as their descendents are guaranteed these rights.” And of course they said among these rights are no taxation without consent, no trial without jury, basic rights like that which were thought to be the fundamental rights of Englishman. And so Americans, 150 or more years after the first settlement, were proclaiming these rights to still be in existence, still to be enforced, still to be respected by the crown and by parliament. And when they weren’t, then of course the final result was revolution.

Narration:
The first battles of the American Revolution started in 1775. Though the war would continue until 1783, the former colonies would put together their newly-formed governments. Virginia was the first to create a state constitution in 1776.

The first constitution of Virginia declared that all positions granted prior to 1776 by appointment of the King, would now be filled by an election in the Virginia legislature. This included the Governor and the newly-formed Virginia Supreme Court of Appeals. What the state Constitution did not elaborate on was how the court structure would be devised. This gave the General Assembly the power to appoint judges and develop the court system.

Shepard:
The court system before the American Revolution is fairly straightforward and simple. County courts on the local level, the Virginia General Court at the highest level. After the American Revolution there is a creation of a much more sophisticated court system.

Hobson:
With the establishment of statehood in the 1770s, there was an attempt to kind of maybe professionalize the court system by establishing a new layer of state courts as another level on top of the old traditional county courts which remained. And to split some of the general court’s jurisdiction into other aspects of the law.

You had these three kind of superior state courts; the general court, the High Court of Chancellery, and the Admiralty Court. The first Court of Appeals of Virginia was not a separate court. It consisted of all the superior court judges.

So that was the first kind of state system, the superior court system, and that lasted until about 1789 when some further reforms took place.

Shepard:
The power and authority and jurisdiction of the county courts is changed and taken away from the people who do not have the legal training and put into the hands of the judges who are professionally trained. So the county courts continue to operate, continue to have a lot of administrative responsibility. But the great responsibility for civil and criminal jurisdiction goes to those higher level courts, superior courts.

Howard:
The core structure of the constitution is the three branches of government. In that sense, the Virginia constitution resembles the federal model in that we have the legislative, executive and judicial branches of government. And it is the state constitution that creates those branches, provides in explicit terms for the separation of powers. It says the executive power is vested in the governor, the legislative power vested in the general assembly and the judicial power vested in the courts, in the judicial system. Now, its not defined. I mean, judicial power doesn’t carry a definition with it. But there is an implication in that language that there are certain things that judges do which are inherent in being a judge.

I think it was Thomas Payne, Tom Payne in Common Sense in 1776, who said “In America the law is king.” And if the law is king, we have gotten rid of the monarch, we had no monarchy. We now had a republican from of government. If the law was to be king somebody has to not only interpret that law but enforce it. And if the people create the constitution, if the people are the basis for all branches of government, then they authorize the courts to act, just as much as they provide for governors and for legislators. So in doing that you bring into effect a system in which judges are endowed with a kind of popular sovereignty themselves. Namely they are meant to be there to be sure that the rule of law is effective.

The rule of law is something that I think traces all the way back to England’s Magna Carta in the 13th century. It’s simply put “no man, or woman, is above the law.” That all of us, no matter what power we have, no matter how powerful we are, we are all subject to the law itself.

Bryson:
I think that some people forget exactly what the opposite of the rule of law is. The opposite of the rule of law is the rule of people or men. As Sir Edward Cooke quoting Brackton said “And if we are under the rule of men, then under the rule of tyrants who can rule by whim rather than rule by law.” But the law is something that we all agree on as a community. Therefore, the rule of law has evolved through judicial interpretation over the many centuries.

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